importers & exporters and customs brokers - Miller Thomson

More documents

Recommendations

Info

– 2 –Subject to the regulations, any person who is duly authorized to do so may transact business underthis Act as the agent of another person, but an officer may refuse to transact business with anysuch person unless that person, on the request of the officer, produces a written authority, in aform approved by the Minister, from the person on whose behalf he is acting.CBSA requires importers or exporters to sign a Form E639 “Agency Agreement” in order toevidence that another person, such as a customs broker, has been authorized to transact businesson behalf of the importer or exporter. CBSA takes the position that the importer or exporter, asprincipal, remains liable for the consequences arising in connection with any customstransactions competed by its customs broker. In other words, when a customs transaction takesplace, the importer or exporter is responsible for the customs transaction, even though itscustoms broker did things to facilitate the transaction. The laws pertaining to importing andexporting goods in Canada generally provide that the importer or exporter is responsible for thepayment of duties, taxes, penalties and interest in connection with a customs transaction.Canada Revenue Agency (“CRA”) has indicated that an importer or exporter may execute apower of attorney in the following forms in relation to tax matters:(a)(b)(c)Form E 445 – Power of Attorney given by an Incorporated Company;Form E 444 – Power of Attorney given by an Individual; orForm E 443 – Power of Attorney given by a Partnership.III.US LAWS AND POLICIESIn the United States, the entry of merchandise appears to be governed by the Code of FederalRegulations, Title 19, Customs Duties, Part 141. Subpart C – Powers of Attorney appears to dealwith general requirements and definitions, the form of an agency agreement (described as apower of attorney), and related issues. Section 141.31 appears to indicate that a power ofattorney may be executed for the transaction of a specified part of, or all of, the customs businessof an importer or agent. Section 141.32 appears to indicate that a “Customs Form 5291 may beused for giving power of attorney to transact Customs business.”dlk\dlk11764
– 3 –The US Customs and Border Protection (“CBP”) has commented upon the custom’s broker rolein verifying or validating a power of attorney. 3A CBP notice states that:In addition to security, the broker’s own professional business interests and continuing obligationto demonstrate “reasonable care” require verification of the POA [power of attorney] grantor’sidentity in legal authority (position in a company or partnership) to enter into a POA.Here are some of the ways the broker can validate a Power of Attorney• To the greatest extent possible, have POAs completed in person so the grantor’s personalidentification (driver’s license, passport, etc.) can be reviewed.• Check applicable Web sites to verify POA grantor’s business and registration with Stateauthorities.• If the principal uses a trade or fictitious name in doing business, confirm that the nameappears on the POA.• Verify that the importer’s name, importer number and Employer Identification Number (alsoknown as the Federal Tax Identification Number) on the POA match what is in ACS.• Check whether the POA grantor is named as a sanctioned or restricted person or entity by theUS government (see the Bureau of Industry and Security, US Department of Commerce). 4IV.STANDARD TRADING CONDITIONSCustoms brokers who act for others engaged in customs transactions in Canada may use anAgency Agreement coupled with standard trading conditions. The Canadian Society of CustomsBrokers (“CSCB”) assists its members by publishing a General Agency Agreement and StandardTrading Conditions. 5The CSCB’s General Agency Agreement and Standard Trading Conditionscontains what the CSCB regards as the minimum information which should form part of anagency agreement, together with standard trading conditions.In the U.S. the National Customs Brokers and Freight Forwarders’ Association of America, Inc.(“NCBFFA”) appears to have published model terms and standard conditions of service (“Termsand Conditions of Service”) designed to form part of a customs power of attorney. The Terms345See http://www.cbp.gov.\xp\cgov\import\broker_management\validating_poa.xmlQuestions about power of attorney requirements may be addressed to the US Broker Management Branch,Trade Compliance and Facilitation, Office of Field Operations, at (202), 344-2580.See Canadian Society of Customs Brokers website: http:\www.cscb.ca\030\mb_cc_e.html and sample AgencyAgreement courtesy of Summit Customs Brokers attached as Schedule “A”.dlk\dlk11764
Page 1 and 2: IMPORTERS & EXPORTERS AND CUSTOMSBR
Page 3: - 1 -I. INTRODUCTIONIMPORTERS & EXP
Page 7 and 8: - 5 -CategoryDuties andResponsibili
Page 9 and 10: - 7 -CategoryGoverning LawCSCBStand
Page 11 and 12: - 9 -The failure to take action (an
Page 13 and 14: - 11 -clearing of goods, the paymen
Page 15: - 13 -complex customs transactions

importers & exporters and customs brokers - Miller Thomson

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?